In a new suit in the Pennsylvania Supreme Court, voters warn that tens of thousands of voters could be disenfranchised under the current deadline, which requires ballots to be received by Election Day regardless of when they were sent.

UPDATE: On May 15, 2020, the Pennsylvania Supreme Court sustained the respondents’ preliminary objections, dismissing our case. We will continue to work to ensure that all voters–regardless of age, disability, race, or country of origin–can fully access our vote-by-mail system during this crisis. Read our full statement on the ruling here.

April 27, 2020 — More than 600,000 Pennsylvania voters have requested a mail-in or absentee ballot for the June 2nd primary election. Pennsylvania’s no-excuse-needed mail-in ballot system, available for the first time this year, is now a vital tool to protect public health as we face COVID-19. But the rules for voting by mail were written for a pre-pandemic world.

Citizens voting by mail will encounter a postal system under immense strain and county boards of elections facing an unprecedented surge in applications. Voters who are most at risk from the COVID-19 pandemic fear that these new challenges could leave them disenfranchised—even if they follow all the rules.

Now, organizations representing voters across the state, and an individual voter, have filed suit in the Pennsylvania Supreme Court to ensure that ballots will count during this crisis. They demand that Pennsylvania allow all mail-in and absentee ballots sent or postmarked by Election Day and received within seven days to be counted during this public health emergency. This would extend the current deadline, which requires all mailed ballots to be received by county officials by Election Day.

Disability Rights Pennsylvania, the SeniorLAW Center, the Southeast Asian Mutual Assistance Associations Coalition (SEAMAAC), the Barrister’s Association of Philadelphia, and voter Suzanne Erb are represented by the Public Interest Law Center and pro bono co-counsel from Arnold & Porter.

“Making the deadline for mail-in ballots a postmark deadline is a simple change that would make a profound difference,” said legal director Mimi McKenzie of the Public Interest Law Center. “We’re facing a perfect storm, and we need to give all Pennsylvania voters the confidence that they can vote safely at home and have that vote count.”

“We’re facing a perfect storm, and we need to give all Pennsylvania voters the confidence that they can vote safely at home and have that vote count.”

Every step in the process of voting by mail—applying for ballots, processing requests for ballots, sending ballots to voters, and receiving completed ballots—is likely to be significantly slowed down by the COVID-19 pandemic. As of April 20 in Philadelphia alone, election officials already had a backlog of more than 10,000 unprocessed ballot requests.

Elections in other states demonstrate the impact of these delays on voters. According to data from the Wisconsin Election Commission, more than 100,000 ballots were received by county officials in the week after the election. These ballots would not have been counted if the state’s previous deadline, requiring ballots to be received by Election Day, had remained in effect and not been extended.

The petitioners in the suit warn that enforcing the state’s current deadline for mail-in and absentee ballots during a global pandemic would likely prevent thousands of voters from having their votes counted. They contend that doing so would violate the Pennsylvania Constitution’s guarantee of free and equal elections, along with its guarantees of free expression and equal protection and its provisions for absentee voting in Article VII, Section 14.

“An election is not ‘free’ when voters must risk their lives to ensure that their vote will be counted,” said Dan Jacobson, an attorney with Arnold & Porter. “To ensure that all Pennsylvania voters have an equal opportunity to safely cast their vote by mail in the midst of the pandemic, it is essential to extend the deadline so that all votes sent by election day are counted.”